Unreported / Non-Citable
Background
Mitchell Taylor Button filed a civil action in the Central District of California, captioned Mitchell Taylor Button v. Page Rad, case number 8:26-cv-02065-FWS-RAO. On October 28, 2026, the assigned district judge issued an in-chambers civil minute order stating that 90 days have passed since the complaint was filed and that no proof of service has been filed. The order does not state the filing date, describe any service attempts, or say whether any defendant has appeared.
The court began with the principle that it is the plaintiff's responsibility to move a case toward a merits disposition, quoting a Central District decision that cites the Ninth Circuit's decision in Morris v. Morgan Stanley & Co. It added that this responsibility includes timely serving the complaint and filing a proof of service. It then quoted Federal Rule of Civil Procedure 4(m), which provides that, absent good cause, a court must dismiss an action if a defendant is not served within 90 days after the complaint is filed. Acting on its own motion, the court cited Rule 41(b), Local Rule 41-6, Link v. Wabash Railroad, Hells Canyon Preservation Council v. U.S. Forest Service, and Ash v. Cvetkov as support for its authority to dismiss sua sponte for failure to prosecute.
The Court’s Holding
The court ordered the plaintiff to show cause in writing, no later than November 4, 2026, why the action should not be dismissed for lack of prosecution. This is a warning and an opportunity to respond, not a dismissal. The court made no finding that good cause for the missing service does or does not exist, and no claim or party has been dismissed.
Instead of a written response, the court said it would treat either of two filings made by the same deadline as an appropriate response: a notice of voluntary dismissal under Rule 41 as to all defendants, or a proof of service of the summons and complaint.
A proof of service alone may not suffice. If the deadline to answer has already passed when the proof of service is filed, the response will be deemed sufficient only if the plaintiff also files a request for entry of default as to all defendants or the defendants' answers, a stipulation extending the defendants' time to respond that complies with Local Rule 8.3, or a notice of voluntary dismissal as to all defendants. No oral argument will be heard unless ordered, and the matter stands submitted once a timely and appropriate response is filed. Failure to respond properly may result in dismissal without further notice or order. The order does not say whether any such dismissal would be with or without prejudice.
Key Takeaways
- A district court may raise the service problem on its own motion, without any defendant asking, once 90 days pass after the complaint is filed with no proof of service on the docket.
- The order places on the plaintiff the burden of moving the case forward, including serving the complaint on time and filing proof of service.
- Filing a proof of service may not end the matter: if the answer deadline has passed, it must be paired with a default request, answers, a Local Rule 8.3 stipulation, or a voluntary dismissal.
- The alternatives are tied to the November 4, 2026 deadline, and missing it risks dismissal without further notice.
- This is a minute order directing a response, not a ruling on the merits or a final judgment, and it does not decide whether good cause exists.
Why It Matters
The order is a routine but practically important example of how the Central District enforces Rule 4(m) and its local prosecution rule. It shows that the court tracks service deadlines on its own, and that its show-cause procedure is built to push a case toward one of three outcomes: proof of service with a path to default or an answer, a stipulated extension, or voluntary dismissal.
The order is unpublished, a case-management minute entry, and carries no precedential weight; it cites authority but announces no new rule. Its value is practical, for litigants who file in this court and for practitioners who need to see how a missed service deadline is handled. What remains open is the plaintiff's response: whether service has occurred or good cause exists, whether the case will be voluntarily dismissed, and whether the court will dismiss if no adequate response is filed.